Battle of the deep pockets

When you read about a lawsuit against a nursing home, do you usually assume that the alleged victim was mistreated and the nursing home should be punished, or that some lawyer is looking for a jackpot verdict?

Deep-pocketed supporters and opponents of a proposed amendment will try to encourage those assumptions in their favor between now and November.

“An Amendment to Limit Attorney Contingency Fees and Non-Economic Damages in Medical Lawsuits” would direct the Arkansas Legislature to limit pain and suffering damages to at least $250,000. (Please note the words “at least,” my fellow reporters who keep omitting those words.) Trial lawyer contingency fees would be limited to 33 1/3 percent after expenses. There would be no limits for other types of damages.

Where’s this debate headed? In politics, always follow the money.

Health Care Access for Arkansans, the group supporting the amendment, raised $871,088.50 in May, June and July, according to campaign finance reports. Of that, $580,000 came from the Arkansas Health Care Association, the group that represents nursing homes, and much of the rest has come from nursing homes and associated entities. Medical groups and providers have not been as active, but they will become involved, said David Wroten with the Arkansas Medical Society.

Those are some deep pockets. Expect to see ads about predatory lawyers as the election nears.

Those lawyers also have deep pockets. A group opposing the amendment, the Committee to Protect AR Families, formed July 12. In less than three weeks, it raised $420,430 from 18 lawyers and law firms, including Fort Smith attorney Joey McCutchen and the McDaniel Law Firm in Little Rock, both of which gave $100,000, and an Illinois law firm, Simmons Hanly and Conroy, which gave $75,000.

There are a lot more lawyers in and out of this state, so expect that pot to grow. That means you’ll be seeing ads about nursing home victims.

You can look at this cynically: Everyone’s just trying to make sure their pockets remain deep. The lawyers want to be able to sue for millions of dollars. The nursing homes want to protect their you-know-whats.

The two sides will accuse their opponents of behaving cynically while describing themselves idealistically – that nursing homes are just trying to serve patients and families, while lawyers are trying to protect victims and prevent victimhood.

As in most campaigns, to get to the truth, voters will have to advance past cynicism but stop short of idealism. In other words, they’ll have to be realistic.

The realistic view is that of course everybody is trying to benefit their own financial situations.

At the same time, nursing homes provide an indispensable daily service to a vulnerable population amidst often grim and difficult situations. Bad things would happen even if humans never made mistakes, which they do. Nursing homes must provide a service while making a profit at a price families and society can afford. That being the case, society’s expectations of nursing homes ought be in line with the resources it provides them. They can’t be perfect.

However, while human error is inevitable, negligence is unacceptable. If a nursing home can’t figure out how to make a profit and provide good care, then it shouldn’t be in business. Providers must be forced to remain vigilant, and one way to do that is through painful financial consequences. That’s why we have lawsuits, and to have lawsuits, we must have lawyers.

All of us, including supporters and opponents of the amendment, can all agree that the old and infirm must be given dignified care – if necessary, in a nursing home. We can all agree that the care must be affordable. And we can all agree that there must be consequences when standards aren’t met.

Achieving those three, all at the same time, is a difficult balance. Voters will decide if limiting non-economic damages and lawyers’ fees is the best way to reach that balance, even while various groups with deep pockets naturally will want to tip it in their favor.

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Meet the author …

Steve Brawner is a freelance journalist. His syndicated columns appear in nine Arkansas newspapers, and he is a frequent contributor to Talk Business & Politics. He appears regularly on the AETN public affairs television show, “Arkansas Week.”

To syndicate his column or hire him to write or speak, email him at brawnersteve@mac.com. Follow him on Twitter at @stevebrawner.

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